BNUMBER: B-277396
DATE: October 9, 1997
TITLE: Pickering Firm Incorporated, B-277396, October 9, 1997
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Matter of:Pickering Firm Incorporated
File: B-277396
Date:October 9, 1997
Joe B. Emison, Jr., for the protester.
Robert C. Miller, Esq., and C. Grady Moore, Jr., Esq., U.S. Army Corps
of Engineers, for the agency.
C. Douglas McArthur, Esq., and Christine S. Melody, Esq., Office of
the General Counsel, GAO, participated in the preparation of the
decision.
DIGEST
1. Where Commerce Business Daily (CBD) announcement stated that
agency would consider qualifications and experience of
architect-engineer (A-E) firms in nine disciplines and evaluators
considered the protester superior in its qualifications and experience
in one of them--museum/exhibit design--record fails to show that
evaluation and selection decision were inconsistent with CBD
announcement where the announcement identified none of the nine
disciplines as more important than the others; agency found the
awardee's qualifications and experience superior for other
disciplines; and source selection board could reasonably conclude that
there was no significant difference in the qualifications and
experience of the two firms.
2. Where CBD announcement stated that evaluation of specialized
experience and technical competence would include knowledge of local
and regional codes and regulations, source selection board's
conclusion that awardee's proposal presented an advantage in its
superior knowledge of local and regional codes and regulations was
consistent with the announced factors; protester's objection to the
consideration of such a factor constitutes an untimely allegation of a
solicitation defect.
3. General Accounting Office will not reevaluate offeror's
capabilities or make its own determination of the relative merit of
proposals, and where evaluation of management structure appears
reasonable and consistent with the announced criteria, the protester's
disagreement with the evaluation provides no basis for sustaining a
protest.
4. Protest challenging conduct of interviews of A-E firms because not
all members of the source selection board attended interviews is
denied where agency's regulation does not require all members to be
present, there is no evidence that their absence resulted in unfair
treatment, and the record otherwise shows that the evaluation was
reasonable.
DECISION
Pickering Firm Incorporated protests the proposed award of a contract
to Johnson and Bailey Architects, P.C. under request for proposals
(RFP) No. DACW62-97-R-0006, issued by the U.S. Army Corps of
Engineers, Nashville District, for design services for an
environmental education center/children's museum, which the agency
contemplates constructing sometime next year. Pickering contends that
the agency unreasonably and improperly evaluated proposals;
specifically, Pickering argues that the evaluation was performed in
such a way as to favor local, Nashville-area firms.
We deny the protest.
On December 6, 1996, the Commerce Business Daily (CBD) published the
agency's request for interested firms to submit a statement of their
qualifications to be considered for the award of a contract to prepare
design documents for construction of an environmental education
center/children's museum in Murfreesboro, Tennessee. The project
would consist of two phases: phase I, preparation of the site in
advance of construction (including environmental remediation, asbestos
abatement plans, and demolition plans for two existing municipal
buildings); and phase II, preparation of final plans and
specifications for construction of the new building, including site
development, roads, parking, utility relocation, and wetland/spring
interpretation.
The CBD notice advised firms of the need to demonstrate expertise in
the disciplines of architecture, environmental, civil, structural,
electrical, mechanical, landscape architecture, interior design, and
museum/exhibit design. It listed the selection criteria, in
descending order of importance, as follows:
a. Professional qualifications of the key project management and
technical personnel to be assigned to the contract. Evaluation
factors will include the education, training, experience, and
registration of these personnel.
b. Specialized experience and technical competence of the prime
firm and any subcontractors in the type of work required.
Evaluation factors will include knowledge of local and regional
codes and regulations, the effectiveness of the proposed
management structure and the prior working relationship between a
prime firm and any subcontractor. A single point of contact
between the [architect-engineer (A-E)] and the Government project
manager must be clearly identified.
c. Capacity of the firm to accomplish the work.
d. Past performance and experience on [Department of Defense
(DOD)] and other contracts with respect to cost control, quality
of work, and compliance with schedules.
e. Geographical proximity of the office responsible for contract
negotiations and production of the work in relationship to the
Nashville District Office and the city of Murfreesboro, TN.
f. Volume of DOD contracts within the last twelve months with
the object of effecting an equitable distribution of contracts
among qualified A-E firms including small and small disadvantaged
business firms.
Criteria a-d were described as "primary," with criteria e and f to be
used only as "tie-breakers" among technically equal firms.
Fifteen firms submitted the required standard forms (SF) 254 (a
general questionnaire for A-E and related services) and 255 (relating
to the specific services being solicited) by January 3, 1997. The
agency established a source selection board (SSB), which evaluated the
firms' qualifications. In accordance with Federal Acquisition
Regulation (FAR) Subpart 36.6, the agency selected three firms,
including the protester and the awardee, as most highly qualified to
perform the services. See FAR sec. 36.602-3(d). The SSB invited the
three firms for interviews on February 4; one member of the SSB served
as chairman at all of the interviews and the remaining members were
represented by subordinates. After the interviews and a review of the
firms' qualifications, the agency ranked the three offerors, with
Johnson ranked first and Pickering ranked second. By letter dated
March 12, the agency advised the protester that it was initiating
negotiations with the top-ranked firm. Pickering filed this protest
with our Office after initially filing a protest with the agency,
which the agency denied by letter dated June 19.
Pickering principally argues that the agency improperly favored local,
Nashville-based firms in the evaluation and selection process.
Pickering asserts, and the agency does not dispute, that its
qualifications and experience were superior to Johnson's in the
discipline of museum/exhibit design. It is Pickering's contention
that, to favor a local, Nashville-area firm, the agency improperly
discounted the protester's superiority in that discipline and
unreasonably concluded that there were no significant differences
between the firms under the four primary selection criteria. By
improperly ignoring Pickering's superiority, the protester argues, the
SSB created an artificial "tie" between the proposals, which allowed
the agency to favor a local firm by basing its selection decision on
geographical proximity, one of the two tie-breaking evaluation
criteria.
In reviewing an agency's selection of a contractor for A-E services,
our function is not to make our own determination of the relative
merits of the submissions, or to substitute our judgment for that of
the procuring agency by conducting an independent examination.
Geographic Resource Solutions, B-260402, June 19, 1995, 95-1 CPD para. 278
at 5. Rather, our review is limited to examining whether the agency's
selection was reasonable and in accordance with the published
criteria. ConCeCo Eng'g, Inc., B-250666, Feb. 3, 1993, 93-1 CPD para. 98
at 3. The protester must demonstrate that the evaluation was
unreasonable, a burden that is not met by mere expressions of
disagreement with that evaluation. CH2M Hill, Ltd., B-259511 et al.,
Apr. 6, 1995, 95-1 CPD para. 203 at 4. The record here provides no basis
to conclude that the agency's selection of Johnson was improper or
unreasonable.
The SSB here prepared a memorandum, dated February 27, for the
selection official summarizing its findings and recommending Johnson
for award. That memorandum reflects the SSB's opinion that, despite
the excellence of Pickering's museum design subconsultant, there was
no meaningful difference between the proposals of Pickering and
Johnson under the four primary evaluation criteria. The SSB
considered Johnson's knowledge of local and regional codes and
regulations superior; it considered Pickering's proposed management
structure, which had most of the required disciplines in-house,
superior. Under the "tie-breaker" criteria, the SSB noted, Johnson
was superior both in geographical proximity and its lower volume of
DOD contracts.
Subsequent to Pickering's protest to the agency, members of the SSB
prepared additional documentation to elaborate on their reasoning.[1]
That documentation indicates that, while the SSB recognized the
particularly strong qualifications of Pickering's museum design
subconsultant, it considered Johnson's qualifications and experience
somewhat better for the disciplines of architecture, landscape
architecture, and environmental. The SSB members noted that both
firms proposed to employ registered professionals in all of the
technical disciplines, with the experience of both firms in
museum/exhibit design attributable to their subconsultants, rather
than to in-house capabilities. Moreover, while recognizing the
superiority of Pickering's subconsultant, the SSB members regarded
Johnson's subconsultant for museum/exhibit design very highly.
The supplemental documents also support and elaborate on the SSB's
conclusion in the February 27 memorandum that museum/exhibit design
expertise should not in itself be the basis for selection. There are,
the agency explains, two ways to design a museum: to design exhibits
and to design the building as a "shell" to house those exhibits, or to
design a more general-purpose building to accommodate exhibits that
will be designed later. Here, the record shows that funding for the
entire project was not assured and that the agency anticipated the
latter approach, where Pickering's ability to design a building around
the exhibits would be of far less importance than the disciplines
needed in the initial, site-preparation phase of the project.
In essence, the agency determined that, given the nature of the
project here, Pickering's qualifications and experience with
museum/exhibit design were not, by themselves, a basis for selecting
Pickering. We see no basis to conclude that this determination was
unreasonable. The CBD announcement identified nine disciplines and
required a demonstration of competence for all of them. These
disciplines were not designated in any order of importance or
identified as having any relative standing. There was, therefore, no
basis for Pickering's assumption that superiority in museum/exhibit
design would be determinative. Further, the CBD announcement clearly
indicated that, while design of the museum building was to be part of
phase II, other work unrelated to museum design--site preparation and
development involving such efforts as environmental remediation, road
development, utility relocation, and wetland/spring
interpretation--was a critical part of both phases of the project.
The agency therefore reasonably could conclude that Pickering's
superiority in museum/exhibit design did not constitute a significant
advantage for purpose of this project.[2]
As noted above, under the second evaluation criterion (specialized
experience and technical competence), the SSB found no significant
difference between Johnson and Pickering. Johnson demonstrated
superior knowledge of local and regional codes and regulations, but
the evaluators preferred Pickering's management structure, with its
majority of disciplines in-house, overall. The supplemental
documentation indicates that the SSB also preferred Johnson's approach
of using its principal as lead architect and point of contact, while
finding Pickering's proposal for a point of contact/project manager
apart from the lead architect, with an additional position of "project
director," somewhat confusing.
Pickering asserts that consideration of the firms' knowledge of local
and regional codes and regulations represents an improper bias toward
local firms. This objection is untimely, since the CBD announcement
stated that the agency would consider such knowledge in its
evaluation. See 4 C.F.R. sec. 21.2(a)(1) (1997) (protest alleging a
solicitation impropriety must be filed prior to the time set for
receipt of initial proposals); B & K Enters., B-276066, May 7, 1997,
97-1 CPD para. 166 at 3 (objection to the announced evaluation factors
must be raised prior to the submission of proposals). In any event,
as the agency points out, unlike considerations of geographical
proximity, consideration of such knowledge does not of itself favor
local firms, since the relevant codes and regulations are a matter of
public record and available to firms outside the Nashville area.
With respect to the agency's concern regarding its proposal for a
point of contact/project manager apart from the lead architect, with
an additional position of project director, Pickering contends that
its organizational structure was clearly defined in section 7 of its
SF 255, as well as in section 10 and in an organizational chart
provided with the SF 255. We have reviewed this material and find
nothing in section 7 or Pickering's organizational chart to clarify
the roles of its team members. Section 7 provides job titles and work
history, but does not address Pickering's plans for the instant
project; nor does the organizational chart provide more than the
theoretical lines of authority for the protester's management
structure. Further, the record supports the agency's perception that
the role of the "project director" is somewhat confusing, since
section 10, while it provides some relevant information, explains none
of the duties and authority of the position, listed at the end of the
SF 255, after a long section describing the duties of the other team
members. In any event, there is little evidence that the conflict in
roles was a significant factor in the evaluation, given the SSB's
overall favorable rating of Pickering's management structure.
Other concerns mentioned at the debriefing, and challenged by
Pickering here, had no significant role in the evaluation and
selection. These concerns involve the experience of the protester's
project director in construction and the management experience of its
point of contact/project manager, not mentioned in the evaluation
documents. The SSB recorder, who conducted the debriefing, denies
that, by noting the project director's extensive construction
experience, he intended to imply that the project director had no
design experience. Similarly, he states that he did not intend to
indicate any concern over the management ability of the project
manager/point of contact by stating that the project manager's
extensive experience in managing DOD contracts was less significant
for the instant, civil works effort, than it would have been for other
projects. In essence, the recorder explains, he was not questioning
the individuals' qualifications as much as suggesting that the
protester might have matched those skills better with other projects.
Neither the debriefing nor any evidence in the record suggests that
the agency failed to conduct an adequate examination of the
information submitted by Pickering in connection with the project.
The agency also denies that it gave more weight to past performance of
contracts for the Nashville District, as Pickering contends it was
told at the debriefing. The SSB did note that Pickering had the "most
dated" experience with the District of any of the three finalists.
The agency has presented its records, indicating that, despite
Pickering's excellent performance on older contracts, its recent
ratings have generally been average, with one "conditional"
recommendation based on problems with the protester's cost estimating
consultant. In this regard, the agency notes that the CBD
specifically noted cost control as a consideration in the past
performance evaluation. Pickering's receipt of a more recent,
favorable rating in an Air Force family housing contract would have
made no difference, the agency contends, in its determination that
there was no significant advantage to Pickering's record of past
performance. Although Johnson had no ratings as a prime contractor,
the agency states that it had performed well as a subconsultant on
prior work at Murfree Springs. On this record we are unable to find
unreasonable the agency's conclusion that there was no meaningful
difference between the two firms under the past performance factor.
In sum, Pickering overall presents nothing from which our Office could
find the agency's judgment, that the two firms were technically equal
under the four major selection factors, was either unreasonable or
inconsistent with the CBD announcement. This being so, the agency's
consideration of the less important criteria--geographical proximity
and contract volume, for which Johnson had a decided advantage--was
reasonable and consistent with the announcement.
As an additional ground of protest, Pickering objects to the conduct
of the interviews because they were not attended by all SSB members.
As a preliminary matter, the agency notes that its regulation
715-1-16, to which the protester refers, requires that only one SSB
member be present at interviews in "routine" procurements, such as the
instant case. Further, given our conclusion that the evaluation was
reasonable and is supported by the record, and the lack of any
evidence that the SSB members' absence resulted in unfair treatment,
we see no basis to object to the agency's selection decision on this
ground.
The protest is denied.
Comptroller General
of the United States
1. As the agency itself recognizes, the contemporaneous evaluation
record is sparse, consisting of the February 27 memorandum addressing
the relative strengths and weaknesses of the offerors. After the
agency-level protest was filed, the SSB prepared individual worksheets
and consensus ratings discussing in more detail the specific findings
that led to the selection decision. For example, while the
contemporaneous memorandum contains no expression of concern over
Pickering's management structure, as discussed below, the agency did
prefer Johnson's approach, where the firm's principal would be the
lead architect as well as the single point of contact, versus
Pickering's approach, which provided for a lead architect as well as a
project manager/point of contract, apparently answerable to a "project
director," whose role was unclear. Since we base our decisions on the
entire record, see Southwest Marine, Inc.; American Sys. Eng'g Corp.,
B-265865.3, B-265865.4, Jan. 23, 1996, 96-1 CPD para. 56 at 10, recon.
denied, B-265865.5, B-265865.6, June 3, 1996, 96-1 CPD para. 261, we will
consider all this information in reviewing the reasonableness of the
agency's decision. While we give greater weight to contemporaneous
evidence, DynCorp, 71 Comp. Gen. 129, 134 n.12 (1991), 91-2 CPD para. 575
at 7 n.13, here we view the agency's post-protest documentation as
simply filling in previously unrecorded details, rather creating a
new, post hoc rationale.
2. To the extent that Pickering argues, generally, that its experience
and qualifications were as great as Johnson's for the other
disciplines, the protester provides nothing more than its mere
disagreement with the evaluation results, and thus provides no basis
for sustaining the protest. CH2M Hill, Ltd., supra.